Book Launch: Truth and Conviction: Donald Marshall Jr. and the Mi’kmaw Quest for Justice

Dr. Leslie Jane McMillan was interviewed by Yanik Gallie in her office on January 28, 2019. McMillan’s book launch on February 1 at the Antigonish public library brought together a roomful of people beyond seating capacity. The book sold out before guest speakers Laurel J. Halfpenny-MacQuarrie and Kerry Prosper introduced McMillan. Truth and Conviction: Donald Marshall Jr. and the Mi’kmaw Quest for Justice is available for purchase at Chapters, Amazon, and local bookshops across Canada.

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YG: Looking back at the wrongful conviction and fishing cases, how does it feel to continue fighting for social justice?

JM: September 17, 1999 is the 20th anniversary of the Marshall decision. This year also marks the completion of the commission on Donald Marshall Junior prosecution for the time he spent in jail for a murder he did not commit. It’s the 30th anniversary of that report which technically was released on January 26, 1990 but the commission concluded its work in 1989. Having been involved in that work for a long time, my passion is constantly fueled and restocked by the outrages that continue to happen in terms of justice and equality with examples of systemic racism and discrimination. There’s no shortage, unfortunately, of situations that point to the need for systemic change. Hopefully the work we do now in collaboration with community is picking up some momentum. It’s starting to drive not just surface changes, but substantive changes in the way relationships recognize and honour Indigenous treaty rights, human rights and Mi’kmaw vision for governance over all things that affect their lives. It’s taken a long time to address systemic racism and discrimination because they require systemic change. There are increasingly more and more people getting involved in positions of power who are recognizing what happens when they exclude Mi’kmaq people from decision making that impacts their lives.

YG: What are your favorite memories with Donald Marshall Junior?

JM: We had a lot of very happy times when we lived up in Cape Breton in Aberdeen at a place we called Junior’s farm. I think some of the happiest moments were when his brothers, sisters, mother, the extended family, the kids and their kids would all come over to the farmhouse. We’d have a big bonfire with lots of food. The day he woke up from his transplant was also one of the happiest days. When he recognized he had survived that ordeal, it was a special moment. Most of the time, happy moments were sitting around up in Aberdeen playing cribbage at the kitchen table with the windows wide open, smelling the cedar, and being out in the country.

YG: How is the title and cover artwork significant to you?

JM: It took a long time to get to that title. It certainly wasn’t the original title. It’s commonplace that the press has an idea, the author has an idea, and sometimes it takes a while to negotiate something that everybody’s comfortable publishing. The book was originally called Unsettling Justice and then colon with another caption.

Truth and Conviction are powerful terms. As an anthropologist, I think there are multiple truths. I also think there are many forms of conviction. Whether it’s conviction to make change or conviction in the sense of the justice system, we constantly construct these ideas of truth and conviction. It’s a metaphor for many paths that are in the book.

It’s the legacy of Donald Marshall Junior that I’m pointing to in terms of narrating these very important points like what are the truths for Mi’kmaq people? What is the history and the consequences of colonization of their legal principles? What are their convictions about the restoration and revitalization of those legal principles today? That’s very much part of Donald Marshall Junior’s legacy outlined in the quest for justice.

The artwork is one of my favorite pictures. I thought we would go with more abstract art or an artist’s rendition, but they wanted to use this photo. It’s a beautiful photo of him fly fishing and he looks extremely peaceful. Fly fishing was one of his favorite things to do.

YG: Having been a defendant for Marshall’s decision on Indigenous fishing rights, can you describe the atmosphere during the proceeding?

JM: There was a lot of tension. The court was first heard at the provincial level here in Antigonish because the charges were near Paq’tnkek at Pomquet Harbour. There was a lot of media attention to the case because it was Donald Marshall Junior. It’s interesting whenever you’re dealing with somebody who’s in the public gaze, you deal with a lot of unwanted attention. You’ve got strangers approaching you about strange things too. There’s a certain vulnerability of being in the public gaze that made me very uneasy and made Donald even more uneasy.

He wanted to avoid that after the wrongful conviction when it was just non-stop. All he wanted to do was exercise his treaty rights in a calm and peaceful way, a right that he knew he had. Generationally, these rights were known by the Mi’kmaq to be active and alive. The gaze of the public, again, caused a lot of stress and tension. His health declined more rapidly than I think it would have otherwise hadn’t he experienced that.Then, we lost at the court here. The late judge John D. Embree did everything he could to give the fairest judgement and open it up for further investigation which we are always grateful that we were given leave to appeal. It was hard work.

YG: Kerry Prosper was talking with me earlier today about the preparation for court and the collaborative effort of the team.

JM: There was a huge team of researchers. A lot of new Mi’kmaq lawyers who had just graduated from the Indigenous Blacks and Mi’kmaq law program that had started at Dalhousie University as a result of the commission of inquiry into the wrongful conviction helped with the case. It was a beautiful synergy that was happening. Many of these Mi’kmaq lawyers at that time are now in leadership positions like chief P.J. Prosper, Doug Brown who is president of Union of Nova Scotia Indians, and Jimbo Michael. A lot of strong Mi’kmaq women lawyers were also part of the research team.

There was an awful lot of preparation. I have seven or eight volumes of historical archival work. William Wicken who was one of the historical experts for the Mi’kmaq worked tirelessly. This was a very important treaty test case because it was testing 1760-1761 treaties which were different than the 1752 treaty. This had the addition of commerciality and the livelihood trade part that was critical to the nation. Bruce Wildsmith and Eric Zscheile led the legal team with exemplary care.

YG: You were with Donald Marshall Junior in Pomquet Harbour fishing. Can you describe the environment the day DFO met you on the water?

JM: A beautiful sunny day. It was one of those days when you’re happy to be on the water. A slight breeze, I remember the water sparkling. Donald’s back was really sore, so I was driving the boat most of the day and I was hauling the nets. In Pomquet, the eels are big. The eels were slapping around the boat.

We were in a good mood, then we see a boat coming. Normally it’s quiet down there. Sometimes there would be a fisherman or two around, but it was quiet that day. The DFO came over in their boat and asked to see what was in our boat. I thought they were looking for by-catch like if you’re fishing salmon when it’s out of season. They asked to see our license and JR said, “I don’t need a license.” The officer said, “Everybody needs a license.” JR said, “I’ve got a treaty right.” I didn’t have a license either. None of the people we fished eel with had them or talked about them. Mi’kmaq didn’t need licenses is how we understood the land to be.

The officers were very polite. They wanted our names and address. We were reluctant to engage with the officers. Donald’s not that comfortable around people in uniform, and rightly so. They asked to take one of our nets for evidence. We asked them to take an empty net, which they did. We wanted it back, but we didn’t ever get it back. Then, they drove away and hit a sand bar. We laughed because we thought, they don’t even know the water. What are they doing down here? We had no idea what was going on. When we called asking to get the net back, things started to progress from there. Things got quite political quickly. It was a nice sunny day and we were quite bewildered.

YG: What are your thoughts on the implementation of the Truth and Reconciliation Calls to Action?

JM: There are 94 Calls to Action. Two of the most critical ones from my perspective are numbers 42 and 50 which talk about building Indigenous justice systems and institutes to learn about Indigenous legal principles and put them into practice. We are a long way from those Calls to Action. I think they offer such an exciting opportunity to engage, develop, and apply Indigenous legal principles.

Other Calls to Action talk about the reduction of incarceration of Indigenous people. There are lots of opportunities to build programs and facilities for wellness and healing that are really grounded in Indigenous cultures and teachings. If the government follows through on their commitment to implement all Calls to Action, there can be some beautiful programs and opportunities to help break cycles of intergenerational trauma, recidivism, and young people going to jail because there aren’t opportunities for education, employment or getting grounded in cultural teachings.

I’m optimistic. There’s lots of mobilization around Indigenous intelligence. There’s lots of scholars, legal scholars, but there must be more collaboration with the legal justice system and the courts, with society in general. What does a pluralistic justice system look like? Community building and fostering community to legitimize their own justice systems and programming in ways that are meaningful. It takes a long time to unpack the horrors of colonization and rejuvenate pride and belief in the principles of ways of being.

YG: Land-based education is important in schools.

JM: We just came from a three-day conference on land-based education as the conduit to healing dispute and dispute management as well. People get disconnected when they make a dispute within a community. They break a relationship not only with the individual they’ve harmed but with the families and networks of families that create a community. How do you fix that? Sending them to jail isn’t the answer. The answer is reintegration back into the fold of what it means to be a whole new person. By creating opportunities, we help an individual who’s in crisis to address their prideness demon, addiction, or cycles of abuse that they need help to facilitate. Giving the space, having the communities create spaces, and having them supported consistently not with programs or pilot projects but with real systemic resources to make change. It’s generative, but we are a long way from seeing substantial results. We’ve been talking for a long time. More people talk now but I want to see more action.

YG: What is your philosophy as an anthropologist?

JM: Anthropology as a discipline is well-positioned in terms of community engagement. In terms of working with Indigenous communities and as a professor of Anthropology, I try to leverage my position of privilege and power to advocate for changes the community tells me they want.

I’m very fortunate. I was up in community today and I was up in community for the last three days of last week with the Marshall family and a gathering of elders. They are so generous in the knowledge they share. The experiences that I have are rich.

A lot of times, it’s really painful and difficult work. You’re working with people’s pain and suffering trying to find solutions so that it doesn’t continue, so that we don’t perpetuate colonial relationships, and so that we don’t allow laws or policies that infringe on people’s wellbeing.

We fight for equity and my job is a great one in that I get to meet people from around the world who are so wise and resilient. It keeps reaffirming that cultural attributes are phenomenal, and they tell us a lot about humanity.